' MUNIB AKHTAR, J.---These two connected petitions came to be filed, in circumstances to be explained, in relation to a bye-election held on 25-2-2012 for PS-53 (Tando Muhammad Khan- cum-Hyderabad), a constituency of the Sindh Provincial Assembly ("the Constituency"). The seat had been held by Mr. Mohsin Shah Bukhari and fell vacant on account of his death. The main contesting candidate in the bye-election was his widow MRs, Syeda Waheeda Shah, and she and the Election Commission of Pakistan are the main contesting parties in these petitions. In Constitutional Petition D-2175 of 2012, MRs, Waheeda Shah is the petitioner, whereas the Election Commission of Pakistan is a respondent; in the other petition, Constitutional Petition D-1134 of 2012, the roles are reversed. For convenience however, we will throughout refer to MRs, Waheeda Shah as "the Petitioner", and to the Election. Commission of Pakistan as "the Commission". Both petitions were filed originally at the Hyderabad Circuit Court and Constitutional Petition D-2175 of 2012 was subsequently transferred to the principal seat with consequent change in number. Ultimately, both petitions, in a manner that need not be described in detail, came to be taken up together and were heard at the principal seat before a Division Bench comprising of ourselves, and are therefore being decided by means of a common judgment.
2. On polling day, 25-2-2012, the Commission arranged 102 polling stations for the Constituency.
One of these was polling station No,16 ("the Polling Station"), where the presiding officer was Ms. Habiba and the assistant presiding officer was. Ms. Shagufta. Briefly stated (the details to be given shortly), an incident took place at the Polling Station involving the petitioner and the two aforesaid officeRs, That led ultimately to proceedings by way of a summary criminal trial that were initiated by the returning officer for the Constituency (who is the respondent No, 4 in Constitutional Petition D-2175 of 2012 and is herein after referred to as the "Returning Officer"). By order dated 5-3-2012, the Returning Officer convicted the petitioner of an offence under section 86(3)(b) of the Representation of the People .Act, 1976 ("the 1976 Act") and imposed a fine of Rs,1000. Concurrently, the Commission itself took action under the 1976 Act on a complaint made by the respondent No, 5 in Constitutional Petition D-2175 of 2012 ("Respondent No, 5"). By an order dated 7-3-2012 made by majority decision, the Commission annulled the poll at the Constituency under section -103AA and ordered a fresh bye-election, and on account of the petitioner's conviction as aforesaid, disqualified her under section 100 for two years from being elected as a member of an Assembly.
By means of C.P. D-2175/2012, the petitioner has impugned her conviction as well as the order of the Commission. The petitioner also preferred an appeal against her conviction. By means of judgment dated 30-5-2012, the learned VIth Additional Sessions Judge. Hyderabad (" ASJ") allowed the appeal (while converting it into a revision) and acqitted the petitioner by setting aside the conviction. The Commission has impugned, the order of the learned ASJ in the connected petition Constitutional Petition No,D-1134 of 2012.
3. The petitioner was represented by Messrs Rashid A. Razvi, Syed Haider Imam Rizvi and Farhat Ullah, Advocates. Although the senior counsel, Mr: Rashid Razvi graciously permitted Mr. Syed Haider Imam Rizvi along with Mr. Farhat Ullah to open the case for the petitioner. Since the submissions of all the learned counsel were complementary, we will (without intending any disrespect) take them up together without differentiating between them. The Commission was represented by Mr. Muhammad Ali Shaikh, DAG (Hyd.) in Constitutional Petition D-2175 of 2012 and Mr. Muhammad Munir Paracha, Advocate in Constitutional Petition D-1134 of 2012. Again, since the submissions .Of both learned counsel were complementary, we will (without intending any disrespect) take them up together without differentiating between them. Finally, we may note that when, judgment was reserved on 1-8-2012, we had permitted all the learned counsel who appeared before us to file written synopses. Learned counsel for the petitioner did so in respect of both petitions.
4. Learned counsel for the petitioner submitted that on polling day, at around 3-30 p.m., the petitioner visited the Polling Station on account of certain reports regarding the voting taking place there. The petitioner claims that she found the polling agents of one of the contesting, candidates (the respondent No, 5) engaged in .Bogus voting. The presiding and assistant presiding officers were there attempting to direct matters, but according to the petitioner they, was not wearing their official badges or carrying any other identification indicating that they were the election officials.
The petitioner mistook them for the polling agents of the other contesting candidate. An incident took place, which is described by the petitioner in her petition (para 1(iv) to (vi)) as follows:- "(iv) That the petitioner considered both the ladies as agents of respondent No, 5 and prevented them from rigging the poll and in the scuffle the ladies were inadvertently hit by the back side of petitioner's hand.
(v) Immediately respondent No, 4the Returning Officer] came. He removed the disorderly agents of the respondent No, 5 from the booth and the petitioner learnt that the ladies, were Presiding and Polling Officer.
(vi) The petitioner regretted and the matter settled then.And there and polling 'continued without any interruption...." (emphasis supplied)
' We pause to note that the only aspect that is relevant for present purposes is whether any, and if so what, consequences do or should flow from the fact that the election officials got hit by 'the petitioner. (This is herein after referred to as "the incident"). No question of the rigging of the poll or bogus voting or any other electoral irregularity of a similar nature arises or has relevance for present purposes. Learned counsel for the petitioner submitted that a media team from a news channel was present on the occasion and the incident was filmed and almost immediately, and repeatedly, aired on various channels. This led to an intense media hype in which the incident was given a wrong complexion and deliberately presented in a manner that was entirely negative of; and adverse to, the petitioner. However, learned counsel emphasized that polling was not interrupted at the Polling Station.
5. Learned counsel submitted that at the conclusion of the polling, and on the same day, all the presiding officers at the various polling stations, including the Polling Station, filed the prescribed returns of the votes cast with the Returning Officer.. This was in terms of Form XIV of the Representation of the People (Conduct of Election) Rules, 1977 ("1977 Rules"). The Returning Officer, on the same day, filed up and signed the prescribed consolidated statement of results on the basis of the count furnished by the presiding officeRs, This is Form XVI of the 1977 Rules. According to learned counsel, by signing Form XVI the Returning Officer became functus officio; which had certain important consequences for present purposes that are stated below. The unofficial result was also released by the Returning Officer late at night on the polling day, with the petitioner being the winning candidate by a substantial margin.
6. Learned counsel further submitted that notwithstanding the foregoing position, and because of the intense media hype regarding the incident, the District Returning Officer on 25-2-2012 constituted a thiee member committee, to investigate and furnish a report. The committee comprised of the Returning Officer and the Deputy Commissioner and the Senior Superintendent of Police,. Tando Muhammad Khan. The report was submitted on 26-2-2012 and according to learned counsel substantially confirmed the position as stated by the petitioner. The committee reported, inter alia, that the:- ' mishap of abuse/beaten [sic] of polling staff: [was] mainly due to misunderstanding that they were purporting to be supporters of rival group, who have pressed to cast vote on the basis of fake NADRA reeipts.
' After understanding the situation, the contesting candidate made excuse of occurring the same incident with the result that the polling stall realized the situation and termed as misunderstanding in their statements. Hence, they do 'not press for any action in the matter."
' It appears that based on the foregoing report, the District Returning Officer submitted his own report to the Commission on the night of 26-2-2012. Learned counsel contended that this report exonerated the petitioner as and to the extent relevant for present purposes.
7. Continuing with their submissions, learned counsel submitted that notwithstanding the foregoing, on 27-2-2012 (Or perhaps on 26.02), two members of the Commission, who were at that time apparently at Karachi, directed the Returning Officer to register an FIR. In respect of the incident under section 86(3)(b) of the 1976 Act. The Returning Officer proceeded to do so (as complainant), with F.I.R. 33/2012 being registered at Police Station Tandu Muhammad Khan on 27- 2-2012 at around 0300 p.m: However, also on the same day, the 'remaining three members of the Commission directed the Returning Officer to himself take cognizance, in terms of a notification that had earlier been issued by the Commission under section 86A, of the offence under section 86(3)(b). Learned counsel took a number of legal objections to these directives/acts (described below) and took strong exception to the. Returning Officer having initiated two separate criminal proceedings in respect of the same incident/alleged offence, one as complainant and the other under his own authority. They further contended that the two orders of the members of the Commission could not stand together, and in particular, the order directing the Returning Officer to himself take cognizance under section 86A was completely vitiated by reason of the earlier order directing that the F.I.R. Be registered.
8. The notification of the Commission pursuant to section 86A ("the Notification") under which the Returning Officer was directed to take cognizance had been issued on 14-2-2012 in relation to a number of bye-elections, all of which were scheduled for 25-2-2012. The Notification stated in material part as fo11ows:-- "In exercise of the powers under section 86A of the Representation of the People Act, 1976 ... The Election Commission hereby authorizes the District Returning Officers, Returning Officers and Assistant Returning Officers appointed for Bye-Elections in Constituencies No .... PS-53 '(Tando Muhammad Khan-cum-Hyderabad) and the Presiding Officers appointed for each Polling Station of the said Constituency, to exercise the powers of a Magistrate of the First Class under the Code of Criminal Procedure, 1898 ... On the 25th February, 2012; the day appointed for Election, in respect of the offences punishable under section 80, section 82A, section 83, section 84, section 85, section 86 and section 87 of Representation of the People Act, 1976 and to take cognizance of any such offence under any of the clauses of subsection (1) of section 190 of the said Code of Criminal Procedure and to try such offence in a summary way in accordance with the provisions of the said Code, relating to summary trials." (Emphasis in original)
' Learned counsel submitted (among other objections) that the officers mentioned in the Notification, including the Returning Officer, could4 take cognizance of the offences specified therein only on 25-2-2012, and since in the present case cognizance was admittedly taken on 28- 2-2012 when notice was issued by the Returning Officer, the entire proceedings were without.
Jurisdiction. It was also contended that since the Returning Officer had become functus officio on 25-2-2012 by signing Form XVI, he could not in any case have taken any action under the Notification.
9. In the event, the Returning Officer did take cognizance as directed by three members of the Commission and issued notices on 28-2-2612 to the petitioner, the other contesting candidates, the election officials of the Polling Station and other officials to appear before him on 3-3-2012 at Karachi to record their statements/evidence "in connection with the incident which took place at Polling Station No, 16 G.G.H.S., Tando Muhammad Khan on 25th February, 2012". On the appointed date, the election officials of the Polling Station, certain other officials and some of the contesting candidates (including the respondent No,5 and the intervener in Constitutional Petition D-2175 of 2012) appeared before the Returning Officer. The petitioner did not appear, but a representative attended on her behalf and stated that she was not feeling well and asked for one day's time for her appearance. This request was acceded to by the Returning Officer, but he did proceed to record the statements of those persons who were present. Thus, those statements were recorded in the absence of the petitioner. The petitioner appeared on 5-3-2012; on which date her statement was recorded. By order of the same date, the Returning Officer, as noted above, found the petitioner guilty of an offence under section 86(3)(b) and imposed a fine of Rs,1000 on her. Learned counsel for the petitioner has impugned this order on a number of grounds; which are described below. Also as noted, the petitioner challenged this order both directly in Constitutional Petition D- 2175/2012 as well as by way of an appeal to the learned ASJ. The latter allowed the appeal (after converting it into a revision) and set aside the order of the Returning Officer, thereby acquitting the petitioner. This judgment is of course the subject matter of Constitutional Petition 1134 of 2012, where it is impugned by learned counsel for the Commission and supported by learned counsel for the petitioner.
10. In the meanwhile, the respondent No, 5 had, on 25-2-2012, filed a complaint before the Commission in relation to the bye-election. A number of grounds were taken in the complaint, but the only one relevant for present purposes was in relation to the incident, as to which the complaint stated as follows:-- "P.S-16, Government Girls High School Tando Muhammad Khan. My opponent candidate namely Waheeda Shah along with Deputy Superintendent of Police Irfan Shah and police escort tortured the womenfolk and the Presiding Officer at P.S-16 namely Habiba D/0 Ghulam Hussain Memon and other Assistant ... Action against her. Such incident was broadcasted in the media by all leading news channel as a breaking-news." (A certain portion of this ground is not fully legible in the copy on our record but the substance of the allegation is clear.)
' Notice was issued to the petitioner and she filed her objections to the complaint, strongly denying the allegations against her. After considering the matter, the Commission gave its decision, by majority, by order dated 7-3-2012. The majority comprised of Mr. Justice (R) Fazal ur Rahman, who wrote the order, Mr. Justice (R) Shahzad Akbar Khan (who agreed with the order) and Mr. Justice
(R) Riaz Kiyani, who agreed with the order and also wrote a concurring note. Two members dissented; being Mr. Justice (R) Muhammad Roshan Essani, who wrote the dissent, with which Mr. Justice (R) Hamid Ali Mirza (the Chief Election Commissioner) concurred. The majority held as follows:-- "Exercising of powers under section 103AA of the said Act we declare the poll held in PS-53 on 25th February, 2012 for a seat of the Provincial Assembly to be void. The Election Commission shall proceed to hold bye-election as provided in section 108 of the said Act."
' By 7-3-2012, the Returning Officer had of course already convicted the petitioner of the offence under section 86(3)(b). Accordingly, the Commission (again by majority) also disqualified the petitioner under section 100 from being elected as a member of an Assembly for two yeaRs, Learned counsel submitted that the Commission's order was contrary to law and liable to be set aside. There was nothing on the record that justified the taking of action under section 103AA and none of the conditions as specified therein were applicable in the facts and circumstances of the case. It was also submitted that the order of disqualification was without jurisdiction but that in any case it had to be quashed since the petitioner's conviction had been set aside by the learned ASJ.
11. Learned counsel assailed the order of conviction and the order of the Commission on various grounds, some of which have been noted above. The principal questions raised by learned counsel were stated in the written synopsis as follows:--
(1) Whether the order dated 27-2-2012 was an order passed by properly constituted Election Commission of Pakistan as per mandate of Article 218(2) of the Constitution of Pakistan 1973?
(2) Whether Order dated 27-2-2012 passed by the Chief Election Commissioner and another member amounts to a lawful order passed by the Election Commission of Pakistan?
(3) Whether after 25-2-2012 the Returning Officer has, become functus officio after furnishing/signing the Form XVI?
(4) Whether in absence of election process (general elections or bye elections) the Election Commission of Pakistan was legally competent and justified to invoke section 86-A of the Representation of People Act, 1976?
(5) Whether in absence of an order under section 100 of the Representation of People Act, 1976, any candidate could be treated as disqualified?
(6) Whether the principle of Natural Justice that no person should be a judge in his own cause was violated by appointing Mr. Ali Asghar Sial (i,e,, the Returning Officer) as Special Magistrate who was also complainant in the F.I.R. No,33 of 2012?
(7) Whether the order passed by the learned Returning Officer on 5-3-2012 is in violation of section 353 of the Criminal Procedure Code 1898 read with Article 10-A of the Constitution, 1973?
(8) Whether the proceedings conducted by the Election Commission of Pakistan under section 103- AA of the Representation of People Act, 1976 was lawful, bona fide and in accordance with the provisions of the Act, 1976?
(9) What is the effect of order dated 30-5-2012 passed by the VIth Additional District and Session Judge, Hyderabad, in Criminal Appeal No,9 of 2012 whereby the order dated 5-3-2012 passed by the Returning Officer was set aside?
' The other grounds/objections taken by learned counsel are noted at the appropriate places in the paras below. Learned counsel contended that the Commission's order merited being quashed and that the petitioner's conviction was unlawful and rightly set aside by the learned ASJ. Learned counsel also relied on certain case-law, which is taken up below as and to the extent necessary.
12. Learned counsel for the Commission supported the Commission's order and submitted that the petitioner had been rightly convicted for the offence under section 86(3)(b). They therefore contended that the order of the learned ASJ setting aside the conviction was erroneous and liable to be quashed. Learned counsel submitted that the Returning Officer, while exercising the powers conferred on him by the Notification was not an "inferior criminal court" within the meaning of section 435 Cr.P.C. And hence his order was not subject to the jurisdiction purportedly exercised by the learned ASJ under that section. It was also submitted that since the Returning Officer's order was made at Karachi, the learned ASJ Hyderabad did not have territorial jurisdiction in the matter.
Learned counsel further submitted that even on the merits, the order of the learned ASJ was liable to be set aside and various grounds were taken in this regard. Insofar as the order of conviction was concerned, learned counsel candidly conceded that the recording of statements on 3-3-2012 in the absence of the petitioner was in violation of section 353 Cr.P.C. However, learned counsel submitted that the petitioner's own statement, recorded on 5-3-2012, was sufficient for purposes of establishing the offence under section 86(3)(b). It was contended that all that was required for purposes of the aforesaid section was to show that the proscribed act had occurred. Thus, learned counsel contended in effect that an offence under section 86 was of strict liability and the submission was that the offence had been made out on the basis of petitioner's own statement.
Learned counsel further submitted that the Returning Officer had complete jurisdiction under the Notification to take cognizance of the incident and the proceeding on the basis thereof that resulted in the petitioner's conviction was lawful and proper. It was also submitted that the Commission's order under section 103AA was within jurisdiction and fully justified in the facts and circumstances of the case.
13. Learned counsel for the intervener in Constitutional Petition No,2175 of .2012 ("Intervener") supported the submissions by learned counsel for the Commission and challenged the maintainability of the petition both under Article 225 of the Constitution and section 105 of the 1976 Act. Learned counsel submitted the Commission had the jurisdiction to take suo motu action under section 103AA and action had rightly been taken in terms thereof. Learned counsel further submitted that the offence for which the petitioner had been convicted had been committed in relation to, and in violation of, the electoral process. In this contest, the fact that the presiding and assistant presiding officers of the Polling Station had accepted the petitioner's apology or explanation was of no consequence; the offence was not personal to them. Learned counsel for respondent No, 5 adopted the submissions made by learned counsel for the Intervener.
14. Exercising the right of reply. Learned counsel for the petitioner submitted that once the prosecution evidence stood excluded, the petitioner could not he convicted on her own statement; the prosecution had to prove the offence beyond reasonable doubt on the basis of its own evidence. Of which there was none since section 353 had been violated. Learned counsel further submitted, relying on sections 6 and 29 Cr.P.C., that the Returning Officer was "an inferior criminal court" while exercising the powers conferred by the Notification, and hence his order was amenable to the jurisdiction of the learned ASJ. It was further submitted that the learned ASJ had territorial jurisdiction in the matter. Learned counsel also contended that another reason why the conviction order was liable to be set aside was that the Returning Officer had taken different stands at different times on the basis of the same material/evidence, and in this regard referred to the report that had been submitted by the committee to the District Returning Officer, the F.I.R. Registered by the Returning Officer as complainant, and the conclusions arrived at by him in the order convicting the petitioner. It was contended that these inconsistencies were sufficient to vitiate the entire proceedings against the petitioner, whether those taken by the Commission or the Returning Officer. It was also contended that the Returning Officer had throughout acted in a wholly partisan manner inconsistent with his duties under the 1976 Act and the exercise of jurisdiction under the Notification. Thus, on any view of the matter, the conviction and the order of the Commission were liable to be set aside.
15. We have heard learned counsel as above, examined the record with their assistance and considered the case-law relied upon. It will be seen that three distinct matters require consideration: (a) the petitioner's conviction under section 86(3)(b) in exercise of powers conferred under section 86A; (b) her disqualification under section 100; and (c) the Commission's decision under section 103AA to annul the poll in the Constituency. The first two matters are linked since the disqualification stands or falls with the conviction, though, as will be seen, there is a juiisdictional issue involved as well. It is the first and the third matters that will be the focus of attention. It is important to keep in mind that although the same material/record was involved for the decisions in both these matters, the proper approach that has to be taken at law and the legal considerations involved are separate and distinct. The differences will be examined and highlighted at the appropriate place below. In order to consider the first and the third matters, it will be necessary to examine three separate orders: (i) the Returning Officer's order dated 5-3-2012 (and the antecedent decisions of the members of the Commission on 26/27-2-2012); (ii) the judgment dated 30-5-2012 of the learned ASJ; and (iii) the order, by majority decision, of the Commission dated 7-3-2012. A great many points will therefore have to be examined and decided to deal with all of the foregoing matters, and this has contributed in no small measure to the not inconsiderable length of this judgment.
16. It will be convenient to begin by gathering in one place the relevant constitutional and statutory provisions. As presently relevant, these are as follows:-- (A). Constitutional provisions (Part VIII of the Constitution) .
218. Election Commission.---(1) For the purpose of election to both Houses of Majlis-e-Shoora (Parliament), Provincial Assemblies and for election to such other public offices as may be specified by law, a permanent Election Commission shall be constituted in accordance with this Article.
(2) The Election Commission shall consist of-
(a) The Commissioner who shall be the Chairman of the Commission; and
(b) Four members, each of whom has been a Judge of a High Court from each Province...
(3) It shall be the duty of the Election Commission constituted in relation to an election to organize and conduct the election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against.
220. Executive authorities to assist Commission, etc.---It shall be the duty of all executive authorities in the Federation and in the Provinces to assist the Commissioner and the Election Commission in the discharge of his or their function.
222. Electoral laws.---Subject to the Constitution, Majlis-e-Shoora (Parliament) may by law provide for: ... [various matters relating to elections] but no such law shall have the effect of taking away or abridging any of the powers of the Commissioner or an Election Commission under this Part.
(B) The 1976 Act (3)Procedure of the Commission.---(1) Subject to the Provisions of this section, the Commission shall regulate its procedure.
(2) If, upon any matter requiring a decision of the Commission, there is difference of opinion among its members, the opinion of the majority shall prevail and the decision of the Commission shall be expressed in terms of the opinion of the majority.
5. Assistance to the Commission.---(1) All executive authorities in the Federation and in the Provinces shall render such assistance to the Commissioner and the Commission in the discharge of his or their functions as may be required of them by the Commissioner or the Commission.
(2) The Commissioner or the Commission may require any person or authority to perform such functions or render such assistance for the purposes of this Act as he or it may direct.
38. Proceedings at the close of poll.---(1) The Presiding Officer shall count the votes immediately after the close of the poll in the presence of such of the contesting candidates, election agents and polling agents as may be present.
(15) After the close of the proceedings under the foregoing subsections, the Presiding Officer shall, in compliance with such instructions as may be given by the Commission in this behalf cause the packets, the statement of the count and the ballot paper account prepared by him to be sent to the Returning Officer together with such other records as the Commission may direct.
39. Consolidation of results.---(1) The Returning Officer shall give the contesting candidates and their election agents a notice in writing of the day, time and place fixed for the consolidation of the results, and, in the presence of such of the contesting candidates and election agents as may be present consolidate in the prescribed manner the results of the count furnished by the Presiding Officers, including therein the postal ballots received by him before the time aforesaid.
(2) The consolidation proceedings shall be held without any avoidable delay as soon as possible after the polling day.
(7) After consolidation of results the Returning Officer shall give to such contesting candidates and their election agents as are present during the consolidation proceedings, a copy of the result of the count notified to the Commission immediately against proper receipt and shall also post a copy thereof to the other candidates and election agents.
42. Declaration of results.---(1) The Returning Officer shall, after obtaining the result of the count under section 39 intimate the results of the count to the Commission which shall declare by public notice the contesting candidate who has or is deemed to have received the highest number of votes to be elected.
86. Disorderly conduct near polling station.---A person is guilty of an offence punishable with imprisonment for a term. Which may extend to three months, Or with fine which may extend to one thousand rupees, or with both, if he, on the polling day-
(1) uses, in such manner as to be audible within the polling station, any gramophone, magaphone, loudspeaker or other apparatus for reproducing or amplifying sounds;
(2) persistently shouts in such manner as to be audible within the polling station;
(3) does any act which-
(a) disturbs or causes annoyance to any elector visiting a polling station for the purpose of voting; or
(b) interferes with the performance of the duty of a Presiding Officer, Assistant Presiding Officer, Polling Officer or any person performing any duty at a polling station; or
(4) Abets the doing of any of the aforesaid acts.
86A. Certain offences tribal by officers authorized by the Commission.---Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), an officer for the time being exercising the powers of a civil or criminal court, or an officer of the Armed Forces, or ari officer performing a duty in connection with an election, who is authorized by the Commission in this behalf may-
(a) exercise the powers of a Magistrate of the first class under the said Code in respect of the offences punishable under section 80, -section 82A, section 83, section 84, section 85, section 86 and section 87; and
(b) take cognizance of any such offence under any of the clauses of subsection (1) of section 190 of the said Code; and shall try any such offence in a summary way in accordance with the provisions of the said Code relating to summary trials.
100. Disqualification on account of certain offences.---(1) where a person has been convicted for having exceeded the limit of election expenses laid down by section 49 or having failed to file the return of election expenses in accordance with section 50 or for any other offence under this Act, or has been found guilty of any corrupt or illegal practice by a Tribunal, he shall, if the Commissioner makes an order to that effect, be disqualified, for such period not exceeding five years as may be specified in the order from being or being elected as, a member of an Assembly.
103AA. Power of Commission to declare a poll void.---(1) Notwithstanding anything contained in this- Act, if, from facts apparent on the face of the record and after such summary inquiry as it may deem necessary, the Commission is satisfied that, by reason of grave illegalities or violation of the provisions of this Act or the rules, the poll in any constituency ought to be declared void, . The Commission may make a declaration accordingly and, by notification in the official Gazette, call upon that constituency to elect a member in the manner provided for in section 108.
(2) Notwithstanding the publication of the name of a returned candidate under subsection (4) of section 42, the Commission may exercise the powers conferred on it by subsection (1) before the expiration of sixty days after such publication; and, where the Commission does not finally dispose of a case within the said period, the election of the returned candidate shall be deemed to have become final, subject to a decision of a Tribunal.
(3) While exercising the powers conferred on it by subsection (1), the Commission shall be deemed to be a Tribunal to which an election petition has been presented and shall, notwithstanding anything contained in Chapter VII, regulate its own procedure.
(C) The Election Commission Order, 2002 ("2002 Order")
8. Decisions of Commission, etc.---(1) All decisions of the Election Commission shall be expressed in terms of the opinion of the majority of its members, including the Chairman.
9. Executive authorities to assist Commission etc.--It shall be the duty of all executive authorities in the Federation and in the Provinces to assist the Commissioner and the Election Commission in the discharge of his or their functions.
9E. Power to make rules.---The Commissioner may, with the approval of the President, make rules for carrying out the purposes of this Order.
17. We begin by examining the constitutional dimensions. It is a salient feature of the Constitution that it expressly mandates that the Commission must ensure that elections are held honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against. Of course, this does not mean that elections are valued any less under those constitutions where there may be no such express provision. Elections are crucially important in any truly democratic polity. A written constitution is, at its most fundamental level, an expression of sovereignty. In purely secular polities, sovereignty is claimed by and for the collectivity of the people. Our Constitution categorically states that sovereignty over the entire universe belongs to Allah alone and the authority delegated by him to our State is a sacred trust to be exercised by its people through their chosen representatives. Thus, notwithstanding the quite different perspective of sovereignty recognized and accepted by the people of Pakistan, representative democracy lies at the very heart of the Constitution. Elections lie at the heart of representative democracy, and the sanctity of the electoral process lies at the heart of any meaningful elections. The electoral waters must run deep and pure for the people of Pakistan to effectively discharge the sacred trust entrusted to them. Thus, the express duty cast on the Commission by Article 218(3) is linked, in a deep and fundamental sense, to the very fabric of the Constitution. It is no mere cosmetic insertion; it is intended to have, and therefore must be given, full effect on the constitutional plane.
18. In our view, this duty has at least three dimensions. Firstly, what matters in relation to elections is not three dimensions. Tings of all five members and decisions taken thereat. The sheer impracticality of making this a mandatory requirement is obvious. No doubt the Commission should and does meet and take decisions in formal meetings. But that cannot mean that it can only carry .Out its functions and perform its duties in this manner alone. Section 3 of the 1976 Act allows the Commission to regulate its own procedure and Article 9E of the 2002 Order enables it to make rules for its own purposes, which 18. In our view, this duty has at least three dimensions. Firstly, what matters in relation to elections is not only the reality but also the perception. To adapt Lord He wears famous aphorism regarding justice, the Commission must ensure not only that elections are held honestly, justly and fairly; it must ensure that they should manifestly and undoubtedly be seen to have been so held. Secondly, when Article 218(3) is read with Articles 220 and 222, it is clear that the discharge of this duty is not dependent on the legislative whim of Parliament. These provisions form an interlocking whole, which is self-executing. Legislation is not, as such, required to infuse life into the constitutional mandate; it is self-sustaining. The constitutional duty cast on executive authorities to assist the Commission necessarily implies a power in the 'Commission to demand such assistance. Since this power (and concomitant obligation) does not require legislation to become operative, section 5 of the 1976 Act and Article 9 of the 2002 Order in this sense add nothing. Even if these statutory provisions were not there, Article 220 itself directly commands the federal and provincial executive authorities, both collectively and individually and from the highest to the lowest levels, to provide assistance to the Commission in the discharge of its functions. A refusal or failure to do so, or any tardiness in providing the sought for assistance would be breach of a constitutional obligation and not simply the violation of a statutory provision. It is also to be noted that the assistance that the Commission may require from executive authorities, and which therefore must be provided, may not only be for them to do something or act in a certain manner, but .Also to refrain from doing the specified thing or acting in the manner identified. For example, the Commission may deem appropriate, either generally or specifically, at either the federal or provincial level (or both) and across the country or only in specified areas, that transfers of civil servants without the concurrence of the Commission be suspended for a certain time Such a direction would constitute part of the assistance that the Commission may require under Article
220. Section 7(6) of the 1976 Act enables the Commission itself to suspend any public functionary or member of the police force or other law enforcing agency if it is of the view, in effect, that his continuing in his post will be inconsistent with the holding of elections honestly, fairly or justly.
However, we would emphasize that this statutory provision is merely illustrative of the executive's obligations under Article 220 and, by reason of Article 222, cannot be determinative or exhaustively descriptive of them. Thirdly, the duty cast in terms of Article 218(3) must be construed broadly.
Thus, (e.g.) the constitutional imperative that elections be organized and conducted honestly, justly and fairly does not end on polling day. The Commission must also ensure that if at all any irregularities or illegalities have been committed then the perpetrators (whosoever they may be) are brought to book. The full weight of the law must be brought to bear against them. This aspect of the constitutional duty is important for two reasons. As already noted, perceptions regarding the elections are as important as the reality and vigorous post-election action by the Commission will go, a long way to assure the people that those who attempt to sully the electoral waters will not be allowed to get away with it. Furthermore, since elections are to be held periodically, such a postelection exercise' will purge the electoral system and process and also send a strong message, thus acting as a deterrent against any future repetition. The fundamental link between the electoral process and the sacred trust entrusted to the people has already been highlighted.
Subversion of the electoral process is thus a subversion of the Constitution itself and the Commission, being the guardian of the elections, must be vigilant against any such attempt. It is also to be noted that if the (actual or attempted) subversion of the electoral process is accompanied by the use or show of force either at large or in any local area (e.g., by the doing of any of the acts described in section 82A or .103 of the 1976 Act), then that may even come within the ambit of Article 6 of the Constitution. Should such an eventuality arise, it would be the duty of the Commission to pursue the matter and if necessary require the Federal Government to initiate appropriate action against all concerned under the High Treason.(Punishment) Act, 1973. The Federal Government would be bound under. Article 220 to take the necessary action in this regard, which the Commission would be entitled to monitor and supervise. Equally, if the Commission required any assistance from federal or provincial executive authorities and the same was not provided or was given in a dilatory manner, the Commission would be entitled to require that action be taken after the elections against (e.g.) all concerned civil servants. The relevant government would be bound to initiate the appropriate disciplinary proceedings and impose suitable punishment against those found liable, up to and including dismissal from service. Again, the Commission would be entitled to monitor and supervise any such proceedings.
19.As the foregoing brief survey indicates, the constitutional duty, mandate and power of the Commission and the obligation cast on executive authorities is extensive and has far reaching consequences. The manner in which this analysis relates to the questions that arise before us will become clear later in.The judgment, and it is to those questions that we now turn.
20. We begin with the events of 27-2-2012, when the Returning Officer registered the F.I.R. With regard to the incident on the instructions of two members of the Commission, and was directed (by the remaining three members of the Commission) to himself take cognizance of it in terms of the Notification. Learned counsel for the petitioner assailed the direction given by the three members as being contrary to law. It was submitted that for a proper decision to be taken by the Commission, each member must have notice of the proposed action, which could only be taken at a meeting of the five members, albeit by majority vote. It was contended that the decision of the three members was not by a properly constituted Commission and of no legal effect. Since the decision of the two members ordering the Returning Officer to register the F.I.R. Also fell afoul of this procedure, learned counsel submitted that even that was contrary to law. However, it was the direction given to proceed in terms of the Notification that, understandably, remained the focus of attention.
21. In our view, this objection is without merit. With respect, learned counsel for the petitioner has confused between the constitutions of the Commission on the one hand, and the manner in which it can act on the other. It is of course true (but not relevant for present purposes) that Article 218(2) mandates that the Commission is to consist of the Chief Election Commissioner ("CEC") and four membeRs, However, the manner in which the Commission is to act is not thereby (or therefore) would obviously include rules of procedure. We were informed that the Commission has not exercised its powers under Article 9E nor are there any standing procedures in place in terms of section 3. In our view, what is of importance is the point which is necessarily implicit in relation to the Commission, and is anyhow made explicit by section 3(2) of the 1976 Act and Article 8 of the 2002 'Order, namely that decisions are to be taken by a simple majority of the members for the time being. How that majority comes about, and whether it expresses its will at a formal meeting or in some other manner is not of importance----unless of course the Commission has formally established procedures for itself, in which case those procedures will have to be followed. In the present case therefore, the fact that the three members gave the direction to the Returning Officer to proceed under the Notification without convening a formal meeting of all five members did not invalidate the decision. What is crucial is that the decision was of three members (the required simple majority of the members for the time being able to act); it was therefore a decision of the Commission and binding as such.
22. It also necessarily follows from the foregoing that if, and to the extent that, the direction given by the two members to the Returning Officer to register the F.I.R. Was inconsistent or could not stand with the decision of the, three members, the former must give way to the latter. Again, the reason is simply that the two members did not constitute the requisite majority. In our view, once the three members of the Commission had taken the decision and directed the Returning Officer to proceed under the Notification, then by necessary implication, the direction of the two members whereby the F.I.R. Was registered became otiose and all proceedings in terms thereof lost efficacy and became redundant. We were informed that on the basis of the F.I.R., a charge sheet (challan) was submitted before the concerned Judicial Magistrate on 8-3-2012. In fact, these proceedings should not have continued and in law 'were without effect on account of the proceedings launched by the Returning Officer under the Notification. However, we may also clarify here that the Returning Officer had done nothing illegal by registering the F.I.R. On the directive of the two membeRs, In other words, the officers and employees of the Commission are not entitled to insist that any directives or orders given to them must come from at least three members of the Commission. In case they receive any orders from one or two members, they are obliged to act in terms thereof, unless those orders are (actually or in effect) countermanded or overridden subsequently by orders of the remaining members constituting a majority and this is precisely what happened in the present case. Again, all this is subject to any procedures that may formally be adopted by the Commission for itself.
23. Learned counsel referred to Imran Khan and others v. Election Commission of Pakistan and others 2012 SCMR 448 but, with respect, that decision has no relevance in the present context.
Accordingly, in our view, the direction given by the three members of the Commission to the Returning Officer to exercise his powers under the Notification was valid and proper and the said officer was obliged to act in compliance thereof. In view of this direction as noted above, the earlier direction given by the two members for registration of the F.I.R., and the action taken by the Returning Officer and any subsequent proceedings done or actions taken on the basis thereof, ceased to have any efficacy or relevance. In this context, it is also to be noted that the record indicates that the two members intimated the three members of what they had directed the Returning Officer to do, but the latter did not revoke or recall the direction given by them to him.
Thus, on any view of the matter, the direction given by the three members to the Returning Officer was, and must be regarded as, the operative decision of the Commission. It therefore follows that the first two questions posed by learned counsel (see para. 11 above) must be answered against the petitioner.
24. The next matter that requires attention is the manner in which the Returning Officer could take cognizance of the offence under section 86(3)(b) in exercise of the powers conferred by the Notification. Learned counsel for the petitioner contended that the Notification empowered the Returning officer "to exercise the powers of a Magistrate of the First Class under the (Cr.P.C.) on the 25th February, 2012" and thus, he could take cognizance of any of the specified offences on that day alone and not otherwise. This was the main contention. In the alternative, it was submitted that the Returning Officer could only take cognizance of any of the specified offences up to such time that he did not become functus officio and not thereafter and it was contended that this point was reached when Form XV1 was signed under the 1977 Rules. In the present case, that form was signed on 25-2-2012. Cognizance however, was taken on 28-2-2012 pursuant to the (majority-given) direction of the Commission. Thus, learned counsel contended, on any view of the matter cognizance was taken unlawfully with the result that all proceedings based thereon and hence the petitioner's conviction, were liable to be quashed.
Learned counsel for the Commission on the other hand submitted that the Notification could not possibly have the meaning sought to be ascribed to it. The reason was that at least some of the offences specified therein could only be committed after polling day, 25-2-2012. As an example, reference was made to section 83. . Subsection (1)(a) of this section proscribes failure to comply with section 50. The latter section requires every contesting candidate to file a return of election expenses within 30' days of the publication of the name of the returned candidate. Learned counsel submitted that a breach of section 50, and hence the offence under section 83(1)(a), could only be committed after the polling day (and possibly, several weeks thereafter). Thus, if the meaning suggested by learned counsel for the petitioner was accepted, no cognizance could be taken of this offence, which could not be correct. Learned counsel submitted that the Returning Officer had full jurisdiction to take cognizance of the offence under section 86(3)(b), and hence the proceedings taken against the petitioner were lawful and proper.
25. When the Notification is considered, it is clear that some of the offences specified therein, such as those under section 86, can only be committed (in polling day, while others (such as the example given by learned counsel for the Commission) can only be committed after that. Day and yet others (such as the offence under section 84) can even be committed before that day. To accept the main contention put forward would mean (e.g.) that in relation to the last category of specified offences, returning officers would have to wait till polling day before taking cognizance even if the offence is committed well before that day. In relation to those offences that are, or can only be, committed after polling day they would be unable to take cognizance at all. This could have the effect of rendering the Notification otiose in large part. In our view and with respect, the meaning suggested by learned counsel for the petitioner offends against well settled rules of interpretation. Therefore, the main contention cannot be accepted. In our view, returning officers (and of course, the other officials specified in the Notification) could take cognizance of the specified offences as soon as the Notification was issued, whether committed before, on or after the polling day. However, this still leaves the alternate submission to be considered. Till how long after the polling day could cognizance be taken? Obviously, there is (indeed, has to be) some period beyond which the powers conferred by the Notification cannot be exercised. As noted above, learned counsel for the petitioner submitted that cognizance could only be taken till such time as the Returning Officer did not became focus officio and this point was reached when he signed Form XVI. It is this matter that must now be considered.
26. Section 86A, under which the Notification was issued, allows the Commission to empower three distinct categories of persons, who can be described as: (a) judges; (b) military officers; and (c) officers performing election duties. (The Notification itself only empowered certain specified classes of officer in the last category.) Keeping these categories in mind, we accept the submission that a person specified in a notification issued under section 86A can only exercise the powers thereby conferred till he becomes functus officio under and in relation to the 1976 Act. We would only add that different categories of persons (or even different classes of officer in the same category) may become functus officio at different times, depending on the role and duties assigned to them by or under the 1976 Act. Thus (e.g.) if military officers are at all empowered under section 86A, they may well become functus officio immediately after the polling day. the question however is, when do returning officers become functus officio under the 1976 Act? This question is of course rather broad, and can for present purposes be recast in narrower terms: does a returning officer become functus officio under the 1976 Act when he signs Form XVI under the 1977 Rules? In our view, the answer to this question must be in the negative. The meaning of functus officio is well understood. To quote from Black's Law Dictionary. (7th ed., 1999, pg. 682):-- ' functus officio'... (Of an officer or official body) without further authority or legal competence because the duties and functions of the original commission have been fully accomplished."
Thus, on the submission made by learned counsel, the office and hence duties, functions and powers of the Returning Officer stood exhausted when he signed Form XVI._ Now, this form is the consolidated statement of results prepared by a returning officer pursuant to section 39. The returning officer has then to forward the result of the consolidation to the Commission pursuant to section 42, in terms of Form XVII as specified in Rule 28 of the 1977 Rules. Section 42(1) mandates that the Commission is to declare the winning candidate on the basis of the return submitted by the returning officer. If the returning officer becomes functus officio as soon as he signs Form XVI, then obviously he cannot fill up and submit the even more (and indeed, crucially) important Form XVII, since his office already stands exhausted. He cannot also do any of the other things still required of him, such as ensuring that all contesting candidates furnish details of their election expenses under section 50, which can be done up to 30 days afterthe publication of the name of the returned candidate. Thus, in our view, a returning officer cannot, and does not become functus officio when he signs Form XVI.
27. Learned counsel for the petitioner relied on. Moulana Atta-urRehman v. Al Half Sardar Umar Farooq and others PLD 2008 SC 663 in support of their submissions. The election to a National Assembly seat was involved. The presiding officers submitted their counts to the returning officer in the prescribed manner (Form XIV). The returning officer in turn issued the consolidated return in terms of Form XVI. The petitioner before the Supreme Court was the winner. Two of the losing candidates applied to the returning officer for the votes and counting to be rechecked. On these applications, the returning officer withheld the "official" result and fixed a date for rechecking of the count and the result. On this, the petitioner approached the Peshawar High Court seeking a declaration that no recounting or rechecking could take place. The High Court stayed the rechecking and one of the candidates who had applied for the same also filed a writ petition. Both the petitions were taken up together, and the High Court was pleased to dismiss the petitioner's petition while allowing the one filed by his opponent. Being aggrieved by this decision, the petitioner approached the Supreme Court. It was submitted that the returning officer had prepared and signed the consolidated statement in terms of Form XVI but before the result could be transmitted to the Commission, the losing candidates filed their applications for recounting/rechecking, and the returning officer did not forward the result. It was argued, inter alia, that once the counts had been consolidated and Form XVI signed, the returning officer became functus officio and could not direct rechecking/recounting of the results. The Supreme Court observed as follows:-- "The petitioner was declared as returned candidate in the unofficial result announced by Election Commission, which is established from the applications filed by respondents Nos.2 and 3 before the Returning Officer and the order of rechecking/recount passed thereon. On perusal of record, we find that Forms XIV prepared by the respective Presiding Officers on the basis of the counting of votes is in order and no one has raised any objection qua them. Further, Form XVI (consolidation statement of the count of the result) based on Forms XIV prepared by Presiding Officers was duly signed by the Returning Officer on 20-2-2008. Clearly, after having signed the above form, the learned Returning Officer had become functus officio and the withholding of consolidated statement of result by him was not justified on any ground, to say the least that the respondent had filed applications for recount. The proceedings carried out subsequently were coram non judice and void ab initio." (pg. 671)
' In our respectful view, the use of the term functus officio in the cited decision is to be given a contextual and not (as, in effect, contended by learned counsel) a. Literal meaning. The literal meaning would have the consequences as stated in the last preceding para and in our respectful view the Supreme Court could not have intended or Contemplated any such effect. When the judgment is read as a whole, it is in our respectful view clear that what the Supreme Court meant was that once Form XVI has been issued there can be no rechecking or recounting of the votes cast. It was in this sense that the Returning Officer had become functus officio. It is also to be noted that Form XVI can only be issued once the elaborate procedure laid down in section 39 of the 1976 Act has been followed (a point to which we revert below) and that procedure in and of itself is sufficient to preclude any possibility of a subsequent recount or rechecking. In our respectful view therefore, the conclusions sought to be derived by learned counsel from the cited decision do not arise from it..
28. Learned counsel also relied on Kunwar Khalid Younus v. Federation of Pakistan and others PLD 2003 Karachi 209 (DB). In this case also, election to a National Assembly seat was involved.
Although the petitioner was apparently the winning candidate, his name was not being published as the returned candidate and he therefore approached this Court in constitutional jurisdiction.
The Commission informed the Court that one of the other contesting candidates had filed an application before it making serious allegations of electoral irregularities and on this, the Commission had made an order (of an interim nature) withholding the publication of the petitioner's name as the returned candidate. The learned Division Bench observed as follows (pg.
213):-- " "Having carefully heard all learned counsel and gone through the record we are clearly of the opinion that section 42(4) of the Representation of the People Act, casts a mandatory duty upon Election Commission to publish the name of the returned candidate on the basis of the consolidated result communicated by the Returning Officer. We agree with Mr. K.M. Nadeem that the proviso to the aforesaid section is the only provision which enables the Commission not to do so i,e, when the petitioner fails to submit the return of election expenses in accordance with section 50 of the Act. It is nobody's case that the petitioner failed to do so. We also agree with the learned Attorney-General of Pakistan that this is a ministerial duty to be performed by the Commission which can be enforced by this Court in Constitutional jurisdiction."
' As will be seen, this decision did not at all involve the question that has been raised before us, namely _whether the Returning Officer becomes functus officio upon signing Form XVI. With respect therefore, it has no relevance for present purposes.
29. As mentioned above, the consolidated result is issued by the Returning Officer in terms of Form XVI after the exercise contemplated by section 39 has been completed. Subsection (1) requires that the returning officer give all contesting candidates and their election agents a notice in writing of the day, time and place fixed for the consolidation of results and then proceed on that day to consolidate the results in the prescribed manner in the presence of such of the candidates and/or their agents who choose to attend. As is clear from the other subsections of section 39, consolidation is an elaborate exercise, which can even K include (if the conditions of subsection (6) are fulfilled) a recount of the ballot papeRs, However, what is of importance for present purposes is to appreciate that Form XVI can only be issued once this exercise has been completed and not prior thereto, and such exercise cannot be undertaken without the notice required by subsection
(1) being issued. These are mandatory requirements, which cannot be avoided. Now, in the present case, the Returning Officer did issue the notice under section 39(1). This notice was issued on 25-2- 2012 and the date, place and time set therein were 28-2-2012, District Council Hall, District Complex Tando Muhammad Khan and 11-00 a.m. Respectively. Thus, the Form XVI relied upon by the petitioner could not have been issued prior thereto and indeed, before us the Returning Officer candidly conceded that he had erroneously signed the Form XVI on 25-2-2012 in the rush of work.
36. In our view therefore, there are two possible conclusions. One is simply to declare the Form XVI signed on 25-2-2012 as contrary to law for having been issued in violation of the provisions of section 39. The other is to conclude that since the form could not have been signed or issued on any date prior to 28-2-2012, it must in law be regarded as having been issued only on that date. We would prefer the latter conclusion and therefore (if at all) the Form XVI must in law be deemed to have been signed on 28-2-2012. Now, admittedly 28-2-2012 is the date on which the Returning Officer took cognizance of the incident in exercise of the powers conferred upon him by the Notification. Thus, even if learned counsel for the petitioner are correct (a view to which we do not subscribe), and a returning officer becomes functus officio on the date on which he signs Form XVI, that date must and can, in law, only be 28-2-2012. It follows that when the Returning Officer took cognizance under the Notification, he had not become functus officio even on the basis made out by the petitioner and hence the proceedings initiated by him under the. Notification were within jurisdiction and lawful. The third question posed by learned counsel (see para 11 above) must also therefore be answered against the petitioner. As to the larger question (see para 26 above), namely when do returning officers become functus officio under and for purposes of the 1976 Act, it is not necessary for us to answer it definitively in the facts and circumstances of the present case and for the reasons just given.
31. Learned counsel for the petitioner submitted that if the Returning OffiCer and the other officials specified in the Notification could take cognizance even after polling day that would in effect set up a "parallel judiciary" in violation of the principles enunciated in Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445. We have already highlighted the constitutional importance of the post-electoral responsibilities of the Commission. The electoral process does not end on polling day. The fact therefore that cognizance can be taken by duly empowered officers under section 86A beyond polling day (as long as they have not become functus officio for purposes of the 1976 Act) is unexceptionable.
32. The fourth question posed by learned counsel can be disposed off shortly. In our view, the Commission can exercise the powers conferred upon it by section 86A whenever there is an election, whether it be general elections to an Assembly or a bye-election in relation to a M particular seat. There is, in either case, an "election process" and as just stated, that process does not come to an end on polling day. Therefore the issuance of the Notification and the taking of cognizance in the present case were entirely lawful.
33. Having concluded that 'the Returning Officer did have the jurisdiction to take cognizance of the incident under the Notification, it is necessary to consider the proceedings taken by him in terms thereof and the objections thereto by learned counsel for the petitioner. However, before doing so it is necessary to examine the nature.Of the offence under section 86(3)(b). In particular, it is necessary to consider the submission by learned counsel for the Commission that the offences under section 86 are of strict liability. It is of course well established that even if the relevant provision does not itself so provide, there is a presumption that mens rea must be shown in the case of an offence. -It is not enough to only establish .The actus Reus. This is a strong presumption and not easily or lightly to be displaced-In other words, generally, an offence is regarded as comprising both of those elements (or ingredients) that together: make up the proscribed act or omission (i,e,, the actus reus), and also of the requisite fault liability, whether by way of intent, ,knowledge, negligence; recklessness or otherwise (mens rea) to do that which is forbidden.
Nonetheless, the law does recognize that some offences can be of strict liability. In respect of such offences, it is sufficient to establish only the actus reus. The Supreme Court recentlyreaffirmed this position in Nasir Abbas v. The State and another 2011 SCMR 1966 as follows:-- "While examining the judgment of the trial Court, we noted with dismay that the Court besides non- reading material evidence on record, did not keep in view requirement of proof of two essential elements of an offence to warrant a finding of guilt i,e, mens rea and actus reus. The age old Latin phrase epitomizes this concept, "actus non facit reum' nisi mens sit rea", which means that the act does not make a person guilty unless the mind be also guilty. Actus reus in simple parlance is the actual act of committing some offence contrary to the law of the land and mens rea is the intent to commit the said offence. If either of the elements is missing , the conduct would not attract a enal provision unless it is a case of strict liability wherein the absence of mens rea may not be fatal to the prosecution." (pp. 1970-71; emphasis supplied)
' The courts have long puzzled over the question of how to determine whether an offence is of strict liability. Indeed, the learned editor of Sir Glanville William's Textbook of Criminal Law (regarded by some as the most cited English textbook on criminal law in the common law world) states, almost despairingly, in the latest (2012). Edition: "In general, the authorities on strict liability are so conflicting that it is impossible to abstract any coherent principle on when this form of liability arises and when it does not (pg. 1278). One must, nonetheless, try. A decision often cited in this regard is Sherras v. De Rutzen: [1895] I QB 918, where Wright, J., after referring to the presumption of mens rea, observed that it could be displaced in certain categories of cases, which in his judgment were exceptions to the general rule and were as follows: the principal' classes of exceptions may perhaps be reduced to three. One is a class of acts which ... Are not criminal in any real sense, but are acts which in the public interest prohibited under a penalty.... Another class comprehends some, and perhaps all public nuisances.... Lastly, there may be cases in which, although the proceeding is criminal in form, it is really only a summary mode of enforcing a civil right...." (Internal citations omitted; pp. 921-22) Sherras v. De Rutzen was cited with approval by the Privy Council in Srinivas Mall Bairoliya and another v. Emperor AIR 1947 PC 135, a case in which it was held that the presumption of mens rea had not been displaced, but in which the facts were far removed from those at hand. A more recent decision, also of the Privy Council, is Gammon (Hong Kong) Ltd. And others v. Attorney General of Hong Kong [1984] 2 All E.R. 503, in which the statutory provisions under consideration were building control regulations and it was held that the offence was of strict liability. The Privy Council laid down the following propositions (at pg. 508):-- "(1) There is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence. (2) The presumption is particularly strong where the offence is 'truly criminal' in character. (3) The presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute. (4) The only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern, and public safety is such an issue. (5) Even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the object of the statute by encouraging greater vigilance to prevent the commission of the prohibited act."
34. Section 86 in fact comprises a number of different offences put together in one place. After having carefully considered the matter, we are of the view that these offences are of strict liability.
We come to this conclusion for the following reasons. Firstly, the offences are particularized in time: they can only be committed on polling day and not a day before or on any day thereafter.
Secondly, the offences are localized in place and/or person: they can only be committed in or near a polling station and in relation to electors and/or election officials. Thus, these are not general offences, i,e,, offences "alive" at all times against the public at large. Thirdly, the proscribed acts are not criminal in any "real sense". Offences are sometimes differentiated between mala prohibita, i,e,, offences simply because a statute so mandates, and mala in se, i,e,; offences because the proscribed act is wrong or evil in itself. It is offences falling in the latter category that are regarded as acts which are criminal in a "real sense". Clearly, persistent shouting, playing some audio instrument loudly or using sound magnifying apparatus or disturbing or annoying an elector visiting a polling station or even interfering with electoral duties of officials can hardly be regarded as offences mala in se. Fourthly, and most importantly, the legislative intent behind creating the offences under section 86 is clear: it is to ensure that the electoral process proceeds in a calm and undisturbed atmosphere and voters are able to exercise their right of franchise in an environment conducive to the proper discharge of the solemn responsibility entrusted to them. It would appear that polling stations are to be, as it were, veritable islands of tranquility on polling day and it is to ensure that this is so that the offences under section 86 have been created. The constitutional importance of elections being held honestly, justly and fairly has already been noted above. In our view, the elevated constitutional status of electoral matters can, in appropriate cases, trump the presumption that mens rea is part of an offence created for election purposes and result in the conclusion that it is of strict liability. Fifthly, interference with electoral duties (subsection (3)(b)) is a far more serious matter than (say) shouting (subsection (2)) howsoever persistent it may be This offence could easily have had a far stricter penalty attached to it than the relatively minor punishment of three months' imprisonment or a small fine. By placing these together in the same section the legislative intent is not to trivialize the seriousness of interfering with electoral duties.
Rather, the legislature appears to have struck a. Balance. In our view, the imposition of a uniform and relatively minor punishment for acts that are of differing gravity but in one way or another have the same effect (disturbing the electoral process) is also indicative of the intent that these offences should be regarded as being of strict liability.
35. Having considered the nature of section. 86 in general, it is necessary also to examine the particular offence involved, i,e,, under clause (b) of subsection (3). Two points may be noted. Firstly, the offence is not "interference" with the electoral duties but rather any act which interferes" with electoral duties. The latter formulation is clearly broader in scope than the former. It obviously includes any act that constitutes what may be called "direct" interference, but also extends to any act which the accused could have reasonably foreseen as resulting in interference with electoral duties. The accused may not have intended to interfere with electoral duties. However, since the offence is of strict liability, if it is shown that such a result or effect could have been reasonably foreseen that would be sufficient. Secondly, the offence is committed by any act which interferes with the performance of the duty" of a presiding officer, etc. An election official performs multifarious tasks at the polling station; interference with any of these would constitute the offence even if other duties or tasks remain unaffected.
36. We now turn to consider the proceedings actually conducted by the Returning Officer once he took cognizance of the incident.. As is clear from section 86A and the Notification, he was empowered to act as a magistrate of the first class under the Criminal Procedure Code and was required to hold a summary criminal trial. As correctly pointed out by learned counsel for the petitioner, this meant that Chapter XXII of the Cr.P.C. Was applicable. Section 262 thereof mandates that the procedure to be followed in summary trials is that laid down in Chapter XX, which relates to trials by magistrates. This is .Subject to any specific provisions contained in Chapter XXII, but none of these are relevant for present purposes. Thus, the proceedings before- the Returning Officer were a criminal trial and all the requirements of such trial, as conducted by magistrates, were applicable and attracted. The first is that once cognizance is taken then section 204, Cr.P.C.
Requires that summons or a warrant, as the case may be, be issued as specified in the Second Schedule to the Code. Learned counsel submitted that no such summons was issued and indeed, the learned ASJ took this as one of the grounds on which he set aside the petitioner's conviction.
This, objection is however, misconceived. There is no dispute that notice was in fact issued by the Returning Officer to the petitioner and the admitted position is that her representative did appear before him on 3-3-2012 and sought time for her appearance, which was granted. The notice was not in the form as specified for a summons, but in our view, this was at most a procedural irregularity that is expressly covered by section 537, Cr.P.C. The conviction cannot therefore be set aside for this reason.
37. The next point taken by learned counsel for the petitioner was that no charge was framed by the Returning Officer. The framing of a charge is of course an important aspect of a criminal trial.
However, in summary criminal trials, section 263 expressly provides that no charge need be framed in cases which are not appealable, and it is common ground that no appeal lay against the order of the Returning Officer (which is why the learned ASJ treated the appeal before him as a revision).
Furthermore, and more generally, section 535 expressly provides, in its subsection (1), as follows:-- "No finding or sentence pronounced or passed shall be deemed invalid merely on the ground that no charge was framed, unless, in the opinion of the Court of appeal or revision, a failure of justice has in fact been occasioned thereby."
' Although an objection with regard to the non-framing of the charge was taken before the learned ASJ, no specific finding was recorded on the point by the latter while setting aside the conviction.
Even otherwise, we are satisfied that there has been no failure of justice on this account. The petitioner was at all times fully aware of the precise allegation/charge against her and as will be seen later, her statement was specifically directed towards the same. In our view therefore, section 263, and if necessary section 535(1) read with section 537, are a complete answer to the objection taken by learned counsel.
38. The next objection taken by learned counsel, and this is in fact the seventh question raised by them (see para 11 above), is that the statements of the witnesses were recorded on 3-3-3012 in the absence of the petitioner. These statements constituted, as it were, the prosecution case. As already noted above, learned counsel for the Commission candidly conceded, in our view quite correctly, that this was in violation of section 353, Cr.P.C., which states in material part that "except as otherwise expressly provided, all evidence taken under Chapters XX [and] XXII ... Shall be taken in the presence of the accused...." The statements that were recorded could not therefore have been considered by the Returning Officer for purposes of the summary criminal trial, Thus, in the present case there was, in effect, no prosecution evidence. Learned counsel.For the petitioner submitted that it is for the prosecution to prove the offence beyond reasonable doUbt and if there is no Prosecution evidence this, ipso facto, cannot happen. Learrfed counsel also submitted that the prosecution case had to be established on its own basis and strength, which was not possible for the foregoing reason. It was further submitted that an accused could not be convicted only on the basis of his statement/defence while excluding the prosecution evidence; any weakness or lacuna in the defence was not sufficient in and of itself for conviction. It was also submitted that the statement of the petitioner had not been recorded under section 342, Cr.P.C. And this was a material irregularity. Learned counsel placed reliance on certain cases, but the foregoing propositions are well established and therefore it is not necessary to consider the cited case-law in any detail.
39. Learned counsel for the Commission on the other hand, relied on the fact that the petitioner had appeared and recorded her own statement before the Returning Officer on 5-3-2012. It was submitted that this statement was, in and of itself, sufficient to establish the offence and hence the conviction was valid and proper notwithstanding the lack of prosecution evidence. As to this statement, learned counsel for the petitioner submitted that its status was indeterminate; it was not one as contemplated by either section 340(2) or section 342, Cr.P.C. No reliance could therefore be placed on the same.
40. Insofar as the objection that the petitioner's statement under section 342 was not recorded, that is not fatal in the somewhat peculiar facts and circumstances of the present case. Ordinarily of course, the position is rather different. If the accused (and the petitioner was in that position in the summary trial) is not examined under section 342, either at all or properly, the conviction is set aside and the matter remanded for trial, either afresh or from the relevant point in the proceedings.
However, it is important to keep in mind the reason why the accused must be examined under section 342. This is clearly stated in subsection (1): it is for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him". If however, for any .Reason the prosecution evidence in its entirety is ruled inadmissible for the criminal trial, then there is obviously nothing to explain. In such circumstances, section 342 is not engaged. The objection taken in this regard therefore is without force in the present context.
41. under all Ordinary circumstances, the fact that there is no prosecution evidence (or none that is legally admissible) would necessarily result in the acquittal of the accused. This case however, has two peculiar features: the accused herself voluntarily made a statement Q that was recorded and the offence is of strict liability. Of course, the latter point does not mean that the offence is not to be proved beyond reasonable doubt. That remains so under all circumstances. However, all that is required is for the actus Reus to be at proved. Now, a statement made by an accused is invariably intended to be exculpatory. What learned counsel for the Commission contends is that it is in fact inculpatory and itself sufficient to establish the actus reus beyond reasonable doubt. The statement was recorded in Urdu, and it is important to note that at no stage has the petitioner denied or contradicted what was said by her, whether before us or the learned ASJ. While the statement must of course be read as a whole, certain important portions of it may be highlighted.
The petitioner stated, inter alia, that after casting her vote at polling station No, 27, she went to the Polling Station, which was designated for women and was in the same building. She saw some men standing there who were creating a ruckus. These men included the relatives and supporters (of whom one was named) of the respondent No, .5 (who, it will be recalled, was one of the contesting candidates). The petitioner further stated that she went inside the Polling Station to inquire as to why men were standing there. At this the men made more commotion, and the petitioner stated that then the referred to .Incident/accident took place. (The actual words used by her were mulkura saniha.). The petitioner stated that the incident was the result of a complete misunderstanding and the specific cause of it was that the elections officials at the Polling Station were not wearing the official identification cards/badges that had been given to them. However, as soon as the correct position became clear, the petitioner at once unconditionally apologized to the concerned officials and the matter stood resolved then and there. She repeated that the referred to incident was based solely on misunderstanding and the commotion at the Polling Station. She further stated that her rivals misused the incident in an unlawful and unethical manner in order to avenge their (electoral) defeat. The petitioner also repeated that at the time of the referred to incident the officials were not wearing their identification badges and so the difference between the officials and other women present was not apparent. She stated that this was clear in all the video clips and she produced a CD along with the statement in which, she said it could clearly be seen that there was no difference between the polling officials And other women. The petitioner also said that her husband had suddenly Passed away on 13-1-2012 (which had of course, triggered the bye-election) and she was disturbed as a result of his death, and she again Repeated that she had nditionally apologized to the concerned Officials, who had accepted her apology and forgiven her. She also stated that the said officials had made such statements before the Returning Officer without any pressure or coercion. She also repeated that the matter between them had been settled and there was no grievance on their side.
42. What are we to make of this statement? It is obviously intended to be exculpatory, but what does it, in fact, show? In our view, the statement makes clear that the petitioner accepts that she hit the election officials. This is borne out by her repeated references to her apology to them and their acceptance (at least according to her) of it. It is also borne out by the video recording which the petitioner herself tendered before the Returning Officer. What the petitioner has emphasized is that she did not intend to hit the election officials, that it was a case of mistaken identity as a result of the fact that the officials were not wearing proper identification, and as soon as she realized her mistake, she made an unconditional apology, which was accepted. Putting the matter in formal terms, the petitioner has admitted the act of hitting the officials, but denies any mens rea. The latter aspect (her denial) is exculpatory. It is important to keep in mind that we have already concluded that the offences under section 86 are of strict liability. Whether or not the petitioner had any intent to commit the offence under subsection (3)(b) is irrelevant. The only question that is relevant is whether the proscribed act occurred or not. Thus, the exculpatory portion of the petitioner's statement, which relates solely to the issue of intent, has no relevance. Now clearly, if a person hits another, he interferes with whatever it is that the latter is doing (unless of course, what the latter is doing involves being hit and/or hitting the hitter as, e.g., in a boxing match). Under all normal circumstances there will be interference with what the victim is doing. It will be recalled that the offence under section 86(3)(b) is "any act which interferes with the performance of the duty of a Presiding Officer, Assistant Presiding Officer" etc. Clearly, the act of hitting an official interferes with the performance of his duty or, at the very least, this could be. Reasonably foreseen. Thus, the actus reus stood established when the petitioner admitted that she hit the election officials, and as the offence is of strict liability, that is all that needed to be established. It was irrelevant that she did not know that the persons whom she was hitting were election officials and/or had no intention of hitting them. The offence under section 86(3)(b) stood proved.
43. It is important to emphasize the peculiar aspects of the present case, and the importance of the fact that the petitioner voluntarily appeared before the Returning Officer to make her statement (and produced the CD), and also that the offence in question was of strict liability. Had either of these factors been absent, the complete lack of prosecution evidence would obviously have been fatal for the prosecution. In our view, the petitioner's statement can be regarded as that of an accused appearing in his own defence in a criminal trial. It is important to place the principles that (a) it is for the prosecution to prove the case beyond reasonable doubt, and (b) any weakness or lacuna in the defence cannot be sufficient for conviction, in their proper context. As noted above, these principles were strongly relied upon by learned counsel for the petitioner, and of course are a well established part of criminal law jurisprudence. We do not (indeed, cannot) dispute these principles. However, we would like to clarify what may appear to be an inconsistency between these principles and our conclusion in the present case. Obviously, if at all the accused puts in any defence, he intends for it to be exculpatory: that is why it is called a defence. What the principles noted above establish is that even if the .Defence fails to exculpate, that in itself is not sufficient to convict the accused. This is what is meant when it is said that the defence is "weak" or "defective" or "full of lacunae": the version put forward by the accused does not satisfy. That in, itself however, does not mean that the accused can be convicted; the offence must still be proved beyond reasonable doubt. Now, it is possible that a defence set up by an accused may also have an inculpatory element. The accused cannot of course require that any inculpatory element in his defence be ignored, and only the exculpatory part be considered: the defence must be considered as a whole. The peculiar feature of the present ease is that the exculpatory portion of the petitioner's statement is wholly irrelevant since it goes only to mens rea and the offence is of strict liability. At the same time, the inculpatory element (the hitting of the election officials) is sufficient in itself to establish the actus reus in its entirety. It is for this reason that (strange though this may appear at first sight) the petitioner can be found guilty of the offence notwithstanding that the prosecution evidence stands excluded by reason of the failure to comply with section 353. It is also to be noted that the fact that the petitioner apologized to the election officials and they forgave her is of no consequence. As correctly pointed out by learned counsel for the Intervener, the offence under section 86(3)(b) is not personal to the victims. It is an electoral offence and must be considered in the context of elections held under the 1976 Act.
44. A word must also be said about the fact that the statement made by the petitioner was not on oath, a point raised by learned counsel with reference to section 340(2), Cr.P.C. Now, an oath is administered to a witness in order to ensure (to the maximum extent possible) that he tells the truth. Thus, if it subsequently comes to light that the witness has lied, he can be prosecuted for perjury. In the case of an accused appearing in his own defence, the importance of the oath lies in that he intends for whatever he says to be exculpatory. If he is in fact acquitted by reason of his statement and subsequently it is established that he told a lie, he can then be prosecuted for perjury. In the present case however, the exculpatory portion of the petitioner's statement is irrelevant, stands excluded from consideration and has not at all affected the outcome. Thus, the fact that she did not make the statement on oath was not a fatal lapse in the peculiar circumstances of the present case.
45. Accordingly, for the reasons given above, we conclude that it stood established that the petitioner had committed the offence under section 86(3)(b), and the Returning Officer could have convicted her (as he did) for that offence. It also follows that question No, 7 posed by learned counsel (see para 11 above) must also be answered against the petitioner.
46. We now turn to consider question No, 6 posed as above. The objection here is that the Returning Officer having registered the F.I.R. Under the direction of two members of the Commission could not thereafter have been directed to initiate proceedings by exercising his powers under the Notification. It is contended that that constituted the Returning Officer as a judge in his own cause, thus violating fundamental principles of natural justice. This objection, which at first sight appears rather formidable, cannot in the end be accepted. The reason is that the "cause" attributed to the Returning Officer was not one in which he had any "interest" in his personal capacity; he was throughout acting in an official capacity under directions. Furthermore, as already explained above, as soon as the three members of the Commission directed the Returning Officer to himself take cognizance, the direction of the two members and thus, any action or proceedings taken on the basis thereof or resulting from it, ceased to have effect. The fact that the Returning Officer had no interest in the matter so as to disqualify him is also established by the report submitted to the District Returning Officer on 26-2-2012 by the committee constituted by him (see para 6 above). It will be recalled that the Returning Officer was a member of this committee, and according to learned counsel the report exonerated the petitioner. Thus, if anything, the Returning Officer was of the view that the petitioner was not liable. He was therefore able to conduct the proceedings in exercise of his powers under the Notification in an independent manner, and uninfluenced by the fact that he had earlier been directed to register the F.I.R. The fact that his name appeared as a prosecution witness in the charge sheet submitted on 8-3-2012 is also of no relevance and could not in any case have influenced him for the obvious reason that this was done days after he had already made the order convicting the petitioner. In our view therefore, question No, 6 must also be answered against the petitioner.
47. Having considered the order of the Returning Officer convicting the petitioner, we now turn to the order of the learned ASJ whereby that conviction was set aside (while treating the appeal as a revision). This is also questioning No,9 posed by learned counsel for the petitioner (see para. 11 above). We proceed first to consider the order on its merits and the various grounds that found favour with the learned ASJ. The first point that he found objectionable about the conviction was that no summ'ns had been: issued under section 204, Cr.P.C. This point has already been dealt with above. The second point taken by the learned ASJ was that the prosecution evidence was recorded in the absence of the accused (the petitioner). (This point was taken at two separate places in the order.) This matter has also been considered in the paras above. The third point taken was that the name of the presiding officer of the Polling Station was shown as the complainant in the particulars filled in by the Returning Officer as required under section 263, Cr.P.C., although no complaint from this officer was on the record. In our view, this is at most a mere irregularity which does not vitiate the proceedings. The learned ASJ also noted that the presiding officer was herself empowered to initiate proceedings under the Notification, but did not do so. This is irrelevant. Any one of the officials specified in the Notification could have taken cognizance, and as already concluded by us, the Returning Officer did so in a lawful and proper manner. The learned ASJ also observed that there was nothing in the record to indicate that the polling had been stopped or result withheld on account of the incident. The proper nature of the offence under section 86(3)(b) has already been considered in the paras herein above. The crucial point is that the act that is proscribed is one that interferes with the performance of duty by the concerned election official.
Whether or not the polling is stopped as a result is not, as such, relevant for the offence in question.
The learned ASJ also held that the Returning Officer had become functus officio on his signing Form XVI. This point has been examined in detail in the paras above. The learned ASJ also noted that a copy of the order of conviction had not been supplied to the accused (i,e,, the petitioner).
The proviso to subsection (1) of section 371 provides a complete answer, and states that such requirement does not apply "to cases tried summarily". The learned ASJ also observed in general terms that "various illegalities have been committed in the trial". However, no specifics were given and no further attention therefore need be paid to this observation which is wholly devoid of content.
48. In our view, for the reasons stated above, the decision of the learned ASJ is not sustainable in law on any of the grounds that found favour with him on the merits. It is therefore liable to be set aside and hence it is not necessary for us to consider the various jurisdictional objections that were taken by learned counsel for the Commission. It is however, necessary to take notice of one objection, taken in the written synopsis by learned counsel for the petitioner, to the maintainability of Constitutional Petition D-1134 of 2012. Learned counsel contended that the Commission had an adequate alternate remedy available against the decision of the learned ASJ by way of an appeal against acquittal under section 417(2A), Cr.P.C. This provides as follows: "A person aggrieved by the order of acquittal passed by any Court, other than a High Court, may, within thirty days, file an appeal against such order". It was contended that even if the order of the learned ASJ was, without jurisdiction, it had to be challenged in the same hierarchy, i,e,, under the remedies provided by Cr.P.C., and certain cases were cited in support. As to this objection, we note that the decision of the learned ASJ was E announced on 30-5-2012, whereas the petition in Constitutional Petition E No,D- 1134 of 2012 was presented on 15-6-2012, i,e,, within the period of 30 days. If at all necessary therefore (as to which we give no definite finding), the petition can easily be convened into or regarded as an appeal against acquittal under section 417(2A). The objection taken in this regard is without merit and it is therefore not necessary to consider in detail the case-law 'cited in support thereof.
49. Accordingly, in view of the foregoing discussion, we conclude that the petitioner was properly and rightly convicted of the offence under section 86(3)(b) by the Returning Officer in exercise of the powers conferred on him by and under the Notification. The order of conviction is therefore upheld and affirmed. We further conclude that the decision of the learned ASJ setting aside the conviction and acquitting the petitioner is not sustainable in law. Accordingly, this decision is quashed and set aside, and the conviction is maintained.
50. The next matter that requires consideration is the petitioner's disqualification under section 100, which is question No, 5 posed by learned counsel (see Para 11 above). This can be disposed off swiftly. As the section expressly states, if a person is convicted of an offence under the 1976 Act, he can be disqualified from being or being elected as a member of an Assembly. However, the jurisdiction under section 100 is vested in the CEC and not the Commission. Furthermore, it is not mandatory for the CEC to make such an order. The disqualification takes places only "if the Commissioner makes an order to that effect". The matter is therefore at the discretion of the CEC. In the present case the order of disqualification under section 100 was, as noted above, made by the Commission (by majority decision). In our view, this order is clearly beyond jurisdiction and is liable to be set aside. We therefore quash the disqualification of the petitioner under section 100. Of course, this will not prevent the CEC from making an appropriate order in his discretion under this section. However, if the CEC is at all minded to make such an order; he must give an adequate opportunity of hearing to the petitioner.
51. The matters under section 86(3)(b) read with section 86A and the linked matter under section 100 having been dealt with, the stage is now set for consideration of the other major issue raised by these petitions, namely the Commission's order annulling the poll in the Constituency in exercise of the powers conferred by section 103AA. It is to address this important question that we now turn.
52. The first point to note in this regard is that contrary to what was contended by learned counsel for the petitioner, the majority decision of the Commission is not based simply on the fact that she was convicted by the Returning Officer. However, the same material and record that was produced before the Returning Officer was indeed used by the Commission. It is important to keep in mind the difference between the two proceedings. The one before the Returning Officer was a criminal trial in which the offence had to be proved beyond reasonable doubt, and consideration of the material and record was subject to all the requirements imposed .By and for purposes of a criminal trial. The proceedings before the Commission were of a different nature altogether. The question under section 103AA is not the criminal prosecution of any person, but rather whether the poll in a constituency should be annulled. The section lays down its own parameters and conditions (which will be considered in a moment), but these are markedly different from the requirements of a criminal trial. For reasons already stated, that portion of the record and material produced before the Returning Officer as constituted the prosecution evidence could not be considered for the criminal trial. Therefore, no ;eference was made to it by us. However, the exclusion of this material from the criminal trial does not mean that the Commission could not consider it for the proceedings under section 103AA. It could certainly do so, and for this reason, we also have examined portions of this record in the paras below. We highlight this point in order to clarify any confusion that might otherwise arise from our having disregarded this record in the earlier part of the judgment. Furthermore, the manner in which the material and record was to be evaluated in the criminal trial (even if it had been admissible) was different from the manner in which the Commission could regard it under section 103AA. This also necessarily affects the approach we take while scrutinizing the two proceedings in constitutional jurisdiction. In particular, while examining the Commission's order, what we must consider is whether the order is in accordance with well established principles governing the exercise of statutory powers, as those principles apply in the context of section 103AA. More specifically, if the impugned order is such as could have been made by a reasonable authority which is acquainted with all of the relevant facts we ought not to set it aside simply because another conclusion could have reasonably been arrived at on an alternative view of the facts.
53. Section 103AA has been reproduced above (see para 16). The first point to note is that the section opens with a non obstante clause, which overrides the 1976 Act in its entirety. Secondly, the section requires the Commission to base its decision on facts that are apparent on the record.
Consistently with this requirement, the section only requires the Commission to make such summary inquiry as it deems appropriate.
' Obviously, if the Commission has to make an inquiry that is more than summary in nature, then either the relevant facts are not apparent on the record, or facts in addition to such facts also need to be ascertained: In either case, the jurisdiction under section 103AA cannot be exercised.
Reference may be made to Mir Ghalib Dhomki v. Election Commission of Pakistan and others PLD 2006 Karachi 314 (DB) where the meaning of "summary inquiry" and the scope thereof for purposes of section 103AA has been considered (pp. 322-23). Thirdly, there must be grave illegalities or violation of the provisions of the 19-76 Act. Finally, the Commission must be Satisfied that on account thereof, the poll in the constituency concerned ought to be declared void. In our view, the word "grave" applies to both "illegalities" and "violation" of the provisions of the 1976 Act or rules, i,e,, it is not any illegality or violation that can allow the Commission to act under section 103AA.
Furthermore; the separate use of the word "illegalities" and "violation" of provisions indicates that the illegalities which can result in the application of the section can be those other than violations of the provisions of the 1976 Act. Any violation of the provisions is an illegality in the sense of being contrary to law, if the intent had been to limit section 103AA only to these, there would be no need to separately refer to "illegalities". Finally, notwithstanding that the plural has been used, even a single illegality, if grave enough, can allow the Commission to invoke section 103AA. This follows from section 13 of the General Clauses Act, 1897, which provides that the singular includes the plural and vice versa.
54. In the present case, the "record" before the Commission consisted of the material that was before the Returning Officer, i,e,, the statements of the persons recorded on 3-3-2012; the petitioner's own statement recorded on 5-3-2012 and the video record. The Commission gave notice to the petitioner and she filed her detailed objections.. In our view, the requirement of a summary inquiry was clearly fulfilled. The facts were apparent on the face of the record inasmuch as there can be no doubt that the petitioner did hit the election officials. This is apparent not merely from the petitioner's own statement, already examined above, but also from the video recording and the statements that were recorded on 3-3-2012. For example, Mst. Habiba Memon, the presiding officer ("PO") of the Polling Station, in her statement categorically stated that the petitioner came there between 3-00 or 3-30 p.m. As she had been apparently misguided by someone and without ascertaining the correct facts, committed violence on the assistant presiding officer ("APO") Ms. Shagufta Memon. The PO further stated that when she asked the petitioner as to why she was beating the APO, the petitioner also gave her a slap and because of the blow, her nose started bleeding. The PO also stated that the petitioner used inappropriate language, and ordered the election officials to stop the polling and as a result the polling did stop for some time. After some time the Returning Officer came and the polling resumed. The PO also stated that although police officers were present there, they did nothing. She stated that after her elections duties were over, she went home and the petitioner came there with her family and asked for her forgiveness. Ms. Habiba said that she forgave the' petitioner because it was better to forgive than avenge oneself.
55. The APO; Mst. Shagufta, also recorded her statement. She stated that she was performing her election duties when suddenly there was some disturbance between the polling agents and voteRs, She left her seat to try and resolve it when suddenly the petitioner entered and she (the APO) returned to her seat. The APO said that perhaps for this reason, the Petitioner apparently mistook her for a polling agent and gave her a slap. The APO stated that afterwards, the petitioner realized who she actually was and she (the petitioner) at once apologized. The APO said that she forgave the petitioner then and there and also stated that she could understand why the petitioner may have mistook her for a polling agent. By this time, the Returning Officer had also arrived. At that time, there were a lot of men and women there and the Returning Officer ordered them to leave. Thereafter, the polling continued in a peaceful manner. The. APO stated that when she got home, she saw video clips of the incident being played over and over again on the news channels, which upset her greatly. She felt that she was being victimized in the matter, and she complained that media persons had also pestered her to hold a press conference. The statements of the remaining persons (other than rival contesting candidates, which we exclude entirely from consideration) also categorically state that the petitioner gave a blow to the APO, and most note the petitioner's anger at the time. The video record also clearly indicates that the petitioner's actions were deliberate. We pause here to note that some of the broadcasts were clearly manipulated- in a manner that could give an impression, that repeated blows were struck. This must be deprecated. Almost all news channels behave responsibly and draw a clear distinction between the news and opinion segments of their broadcasts. The news should be telecast as is and without any overt or covert manipulation.(although we recognize that the content may validly be edited for broadcasting purposes). However, the fact remains that there can be no doubt that the blows given by the petitioner were deliberate and intended.
56. Learned counsel for the petitioner submitted that the incident did not at all affect the overall polling in the Constituency. It was limited to only one polling station out of 102. Even if all the votes cast at the Polling Station were excluded, the petitioner would still win easily by a big margin. The bye- election could not be upset on so narrow and limited a basis. It was also submitted that if the Commission's decision were allowed to stand, then there would be nothing to prevent a losing andidate from playing a spoiler's game and forcing a re-election for the constituency, thus disenfranchising the entire electorate, by the simple K expedient of (e.g.) going to a Polling Station and deliberately hitting an election official. It was strongly averred that no case at all had been * made out for the exercise of jurisdiction under section 103AA. Reliance, in particular, was placed on Haji Ibrahim Khan v. Abdul Hameed Khan Achakzai and others PLD 1990 SC 352 and Mian Khursheed Mehmood Kasuri v. Returning Officer and others 1994 CLC 296 (a decision of the Commission).
57. The majority order. Describes the incident as "unfortunate and sordid" and it was certainly that.
Was it however, sufficient to justify L action under section 103AA? It will be recalled that the Commission his L to be "satisfied" that the poll should be annulled. In Yousuf Muneer Shaikh and others v. Election Commission of Pakistan and others 2005 CLC 123 (a case cited by learned counsel for the petitioner) a learned Division Bench of this Court considered the meaning of "satisfaction" in the context of section 103AA. It was observed (at pg. 140) that such satisfaction could not be arbitrary or fanciful, but should be in line with the views expressed by the Supreme Court in Syed Saeed Hasan v. Pyar Ali and others PLD 1976 SC 6. In the passage relied upon, the Supreme Court had observed as follows:- "'Satisfaction' is the existence of a state of mental persuasion much higher than a mere opinion and when used in the context of judicial proceedings has to be arrived at in compliance with the prescribed statutory provision and other legal requirements. Far from being a subjectively or capriciously arrived at conclusion, it presumes observance of certain well-settled _ judicial principles and is a firm state of kind admitting of no doubt or indecision or oscillation. To be 'satisfied' with a state of things is to be honestly convinced in one's own kind.... Satisfactory evidence has been explained as sufficient evidence meaning an amount of proof which ordinarily satisfies an unprejudiced mind beyond a reasonable doubt. In Corpus Juris Secundum 'satisfy' has been held to be synonymous with 'convince' beyond a reasonable doubt and 'satisfaction' has been explained as a state of mind, which connotes a sense of certainty and conviction or release from suspense, doubt, or uncertainty. According to the Oxford English Dictionary to satisfy' means to furnish with sufficient proof or information or to assure or set free from doubt or uncertainty to convince." (cited at pg. 141)
58. In our view, in the present case, the illegality and violation of the provisions of the 1976 Act clearly stand established on the face of the record. The only questions are firstly, as to the nature of the illegality/violation, i,e,, was it "grave" enough for purposes of section 103AA, and secondly, if so, whether the Commission was properly satisfied (in the sense just noted) that the poll should be annulled and the bye-election be held afresh in the Constituency. Now, it is undoubtedly true that some illegalities or violations are, in their very nature, more serious, i,e,, graver than otheRs, It is however important to keep in mind that the gravity of the same illegality or violation may also vary from case to case. For example, murder is inherently an offence graver than almost all otheRs, However, a premeditated murder committed by (say) a policeman in a fake "encounter" is clearly graver than one committed as (e.g.) a crime of passion in the heat of the moment. The 1976 Act creates a number of offences in relation to electoral matters, each of which is of course a violation of the provisions of the said Act. While some are obviously graver than others, it is also clear that the gravity of any given offence or violation may vary from case to case. In our view, this variation can for convenience be likened to a spectrum or graduated scale. Thus, an offence or violation committed by an overenthusiastic or overzealous supporter of a candidate but without his knowledge, encouragement or backing is less serious than one committed by a supporter with the knowledge or backing (tacit or otherwise) of the candidate, which in turn is less serious than one committed by a supporter as part of a concerted or organized plan orchestrated by the candidate, which again is less serious than one committed by the candidate himself. Or, to invert the scale, there can be no doubt that in electoral matters, the case where the candidate himself is the perpetrator of an offence or violation is the gravest possible situation that can be envisaged in relation to that illegality or violation.
59. The second aspect that requires to be noted is that the gravity of the illegality or violation may also vary from case to case depending on how it is committed or against whom it is perpetrated.
For example, a murder committed in a particularly brutal manner is generally regarded as a more serious affair and thus (e.g.) may even become the offence of terrorism under the Anti-Terrorism Act, 1997. Now, when the 1976 Act is examined as a whole, it is at once clear that the returning officers are the operational linchpin of the electoral exercise. But equally crucial is the role of the presiding officers, assistant presiding officers, etc. Who ' are stationed at the polling stations.
Returning officers cannot possibly perform their duties without the full and active performance of duties by the presiding officers, etc., and the tight nexus envisaged between these two tiers of election officials is quite apparent. Together, they are intended to constitute and provide the steel frame (if we may adopt the expression used by Mr.. Lloyd George for the Indian Civil Service) for the electoral edifice. In our view, it is crucial for the entire electoral process, and the holding of elections honestly, just1S, and fairly, that these election officials are able to perform their duties fearlessly and confidently. Indeed, the manner in which they should be able to conduct themselves may be likened to the description given of the district officer of, old who, in the words of a court of inquiry that sat in 1954, acted in the performance of his duties with "a soft smile on a firm mouth, determination written on his face". For this, it is of the utmost importance that the person of these officers be regarded as inviolable. They must have complete confidence that wherever they go and - whomever they address, and whoever it is who approaches or even accosts them they will never be subjected to any physical assault or threat to their person. A blow landed on the person of an election official should thus be regarded as nothing less than a blow to the electoral process itself.
60. When the facts of the present case are examined in light of the above discussion, we are in no doubt that the illegality or violation involved was "grave" within the meaning of section 103AA. The actual offence (i,e,, illegality/violation) involved was under section 86(3)(b): an act which interfered with the performance of duty of the PO and APO at the Polling Station. This is of course a serious matter in itself. But the gravity of the illegality and violation was doubly compounded, both by the fact that it was committed by the "worst" possible perpetrator, i,e,, personally by a contesting candidate (the petitioner) and in one of the "worst" possible manners, i,e,, by a physical assault on the persons of the PO and APO. The gravity of what happened cannot be overemphasized. The matter clearly fell within the ambit of section 103AA.
61. Learned counsel for the petitioner relied particularly on Haji Ibrahim Khan v. Abdul Hameed Khan Achakzai and others PLD 1990. SC 352. This was an appeal against a decision of the Balochistan High Court, which is reported as Abdul Hamid Khan Achakzai v. Election Commission of Pakistan and others 1989 CLC 1833 (DB). The election to a Provincial Assembly seat was involved. After the polling was over, the counting of votes at two polling stations (out of 57) was disturbed. Although the election officials shifted the voting process to the office of the returning officer, some supporters of one of the candidates forcibly removed the five ballot boxes that contained the votes cast at the two polling stations and attempted to take them away. They were pursued by the law enforcement agencies and two of the ballot boxes (and some other election material) were recovered. Eventually, as per the consolidated result filed by the returning officer with the Commission (i,e,, Form XVII) the first respondent before the Supreme Court ("the winner") was declared as having received the most votes. However, the Commission took up the matter and made an order under section 103AA annulling the poll and ordering a bye-election. The winner challenged this order before the High Court, which quashed the decision of the Commission and directed that he be declared the returned Candidate. An appeal was preferred by one of the rival candidates but the Supreme Court upheld the decision of the High Court and dismissed the leave petition. Learned counsel relied on the following passage from the decision of the Supreme Court:- -- "We agree with the High Court that in a case where a serious violation of law or any statutory rule is established by a group of miscreants or by the supporters of a losing candidate in one or two polling stations, the election of the whole constituency may not be set aside if on the strength of the votes cast in other polling stations and the available record a clear result is determinable....[To] declare the election of the whole constituency as void on account of the misdoings or the hooliganism perpetrated by the supporters of other candidates would be to encourage candidates who felt that they are losing getting the whole election annulled and frustrating the wishes of the electorate. This. Court will not easily countenance such a' malversion of the electoral process. " (pg. 358; emphasis supplied)
' In our respectful view, this decision, rather than supporting the case of the petitioner, endorses the analysis in the paras herein above. It is to be noted that the illegalities were committed by the supporters of a losing candidate, whereas in the case at hand, the illegality was N committed by the winning candidate herself. The exercise of jurisdiction under section 103AA is discretionary, and the Supreme Court decision serves as a salutary warning to the Commission not to unwittingly become a pawn in the machinations of a losing candidate who is intent on, as it were, snatching some sort of victory from the jaws of defeat. Should a losing candidate make such an attempt, he and his supporters should certainly feel the full force (and if we may say so, fury) of the law, but the poll should not be annulled. But that situation is a far cry from an illegality committed personally by a winning candidate in the manner at hand. If the conclusion sought to be derived by learned counsel from the Supreme Court decision is accepted that would, in effect, give a winning candidate leave and license to do whatever he or she may desire secure in the knowledge that the mere factum of victory would force the Commission to draw a veil over any illegality or violation howsoever deserving of condemnation it may be. In our respectful view, this can hardly be an appropriate reading of a Supreme Court decision.
62. There is another important point that needs to be brought to the fore. The constitutional dimensions of the election process have already Been explored. As pointed out (see Para 18 above) in elections perception is as important as reality. To repeat: elections must not only be held honestly, justly and fairly; they must manifestly and undoubtedly be seen to have been so held.
Can this be said of an election in which the winning candidate (the petitioner) has acted in the manner that she did, and has been seen by the country at large as having so acted? Would not doubts arise in the mind of any right thinking reasonable citizen about the validity of such an election? Would not the. Commission be justified in taking appropriate action' to set at rest any such unease, if necessary by annulling the poll? We have no doubt that the answer to all of these questions must be in favour of the Commission and against the petitioner. Learned counsel for the petitioner attempted to portray the incident as a mere passing flicker or hiccup, confined to one polling station out of a great many, leaving no lasting impact on the election itself. But that, with respect, entirely misses the point. What according to learned counsel was only a slight tremor was in fact a major jolt; what is presented as a mere gust was in fact a tempest. Had the incident involved some overzealous supporter of the petitioner or even a trusted lieutenant, there may have been some merit to the argument. But the fact that it was the petitioner herself-the winning candidate no less-who was involved changed everything. When the petitioner struck the PO and the APO she in effect delivered a body blow to the electoral process. That she did it unwittingly (at least according to her) cannot lessen the enormity of what happened. If winning candidates assault election officials (or any other person at a polling station) smug in, the belief that their anticipated victory with allow them to get away with it, then they do so at peril to their victory. If they believe that victory puts their actions above the law, they are entirely mistaken. The Constitution and the law take a different view altogether.
63. Learned counsel also relied in particular on Mian Khursheed Mehmood Kasuri v. Returning Officer and others 1994 CLC 296, a decision of the Commission. In that case, the Commission observed that if the situation requires a full-fledged enquiry, then the jurisdiction under section 103AA cannot be invoked, since only a summary inquiry is permissible under the section. Since we have already concluded that a summary inquiry was sufficient for the case at hand and was duly held, this case of no assistance to the petitioner.
64. Learned counsel also contended that the entire chain of events that resulted in the petitioner's conviction and the annulment of the poll were driven by an intense media campaign and pressure, which in effect forced the Commission's hand. Thus, the entire exercise was nothing but a forced response to external clam our and hence contrary to law: Again, with respect, this misses the point.
In any democratic polity, the media plays an important and integral role in monitoring the, electoral process. It can, and does, play a crucial role in bringing to light any illegalities or violations that can affect the electoral process. Again, it is important to keep in mind that the perception that elections have been held honestly, fairly and justly is as important as the reality of it. If therefore the media draws attention to any illegality or violation and the Commission takes notice of the same and acts on it, no illegality is committed nor has the Commission bowed impermissibly to any external pressure. In this context, reference may be made to the by now well established principles of suo Motu jurisdiction. Superior courts in many instances exercise this jurisdiction when some illegality or violation comes to light as a result of the media's efforts. If learned counsel is correct, then such exercise of the jurisdiction would also be contrary to law, a conclusion that cannot be countenanced. Therefore, in the present case the fact that the incident P was caught on tape (as it were) and then put in the public domain by the media resulting in action by the Commission is not to be condemned but, if anything, ought to be commended.
65. We therefore conclude that the Commission could have been, and was, properly satisfied in the facts of the case at hand that the poll in the Constituency should be annulled on account of the grave illegality/violation and hence, the majority decision was a lawful and proper exercise of the jurisdiction under section 103AA. Certainly, this was a decision that could reasonably have been made by an authority in Q exercise of its statutory powers on the basis of the relevant facts. If at all Q therefore another view or conclusion Is possible that is not sufficient, in accordance with well- established principles; for us to quash the Commission's decision in the exercise of writ jurisdiction under Article 199 of the Constitution. Accordingly, question No, 8 posed by learned counsel (see para 11 above) must also be answered against the petitioner.
66. Before parting with this judgment, we would like to record our appreciation for the assistance that was provided by all the learned counsel who appeared before us. In particular, we would like to mention the attractive manner in which Mr. Syed Haider Imam Rizvi along with Mr. Farhat Ullah presented the case for the petitioner.
67. In view of the foregoing, Constitutional Petition D-2175 of 2012 (Kar.) and Constitutional Petition D-1134 of 2012 (Hyd.) are disposed off.As follows:--
(a) The order of the Commission, by majority, under section 103AA is upheld and affirmed and the Commission is directed to proceed with the holding of the bye-election for the Constituency.
(b) The conviction of the petitioner, MRs, Syeda Waheeda Shah, of the offence under section 86(3)
(b) of the 1976 Act is upheld and affirmed.
(c) The decision dated 30-5-2012 of the learned VIth Additional Sessions Judge, Hyderabad setting aside the conviction of the Petitioner is quashed and set aside.
(d) The disqualification of the petitioner under section 100 by the Commission (by majority decision) is quashed and set aside on the jurisdictional ground, but the Chief Election Commissioner shall be at liberty to exercise his powers under that section, in terms as stated in para 50 above.
(e) There will be no order as to costs.